Must New Jersey Child Support Guidelines Always Be Used To Determine How Much Should Be Paid?

June 01, 2015
By
Edward R. Weinstein

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No. Following please find how child support lawyers at our East Brunswick,
New Jersey law firm handle this common question from our clients.

History of Child Support

In 1986, the State of New Jersey adopted child support guidelines. They
were developed to provide the court with “economic information to
assist in the establishment and modification of fair and adequate child
support awards.” See Appendix IX-A, Considerations in the Use of
Child Support Guidelines.

Rule 5:6-A, Child Support Guidelines, dictates that the guidelines MUST
be used by the court as a rebuttable presumption to establish and modify
child support. The guidelines apply to initial motions to fix child support
and applications to modify support.
Lozner v. Lozner, 388 N.J. Super. 471 (App. Div. 2006).

Earned, unearned and imputed income are to be considered in calculating
child support.
Caplan v. Caplan, 182 N.J. 250 (2005), aff’g 364 N.J. Super. 68 (App. Div. 2003).
Alimony, inheritance, investment income, litigation proceeds, military
pay, pension and social security payments can be included in income to
determine the proper amount of child support. See, generally,
Fall & Romanowski, Current N.J. Family Law, Relationships Involving Children at 35:2-1.

Child support cannot be determined for families with extremely high or
low income. Therefore, different “guidelines” are provided
in these circumstances so that in families with net income less than the
U.S. poverty guideline, the support award “should” be between
$5.00 weekly and the support amount calculated at $180 combined weekly
income for the designated number of children. See para. 20 at Appendix
IX-A, Considerations in the Use of Child Support Guidelines.

For families with combined net income over $187,200, the court is directed
to apply the guidelines up to that amount and then supplement the award
with a “discretionary amount based on the remaining income”
and factors at N.J.S.A. 2A:34-23. Id. Compare with the three pony rule
discussed in
Isaacson v. Isaacson, 348 N.J. Super 560. (App. Div.) certif. denied., 174 N.J. 364 (2002)
(“Children are entitled to not only bare necessities, but a supporting
parent has the obligation to share with his children the benefit of his
financial achievement.”). Furthermore, according to
Isaacson, if parents can afford it, they should provide for their children. Id.

There is no requirement that permits dictation as to what child support
is to be spent on. According to Appendix IX-A, child support includes
coverage for the following expenses:

“the child’s share of expenses for housing, food, clothing,
transportation, entertainment, unreimbursed health care up to and including
$250 per child, per year, and miscellaneous items.” The basic child
support award has three categories of allocated support, i.e., what is
the child support money spend on (or should be spent on):

38% of the award is for fixed costs which the parent incurs even when the
child is not residing with them such as housing, furnishings, utilities
and household care items.

37% of the award is allocated for variable costs which the parent may incur
only when the child is with them such as transportation and food.

25% of the award is allocated to controlled costs, which are costs the
parent has control over for spending for the child, i.e., clothing, personal
care, entertainment expenses.

But does every family have the same set expenses for which child support
is intended? If the purpose of child support is to support the child,
how does the court make sure that happens?

Like child support, medical expenses for the children, cannot be waived
by the parents. SeeGotlib v. Gotlib, 399 N.J. Super 295 (App. Div. 2008) (holding that the right to receive
payments for unreimbursed medical expenses belongs to the children as
they provide essential benefits to the children and are therefore, not
subject to waiver by a custodial parent.)

NJ Permits Deviations from the Child Support Guidelines

If the court finds that the guidelines are inappropriate in a specific
case, it may either disregard the guidelines or adjust the guidelines-based
award to accommodate the needs of the children or the parents’ circumstances.
The rule permits a deviation or modification from the guidelines in specific
instances. The rule states, in pertinent part,

The guidelines may be modified or disregarded by the court only where good
cause is shown. Good cause shall consist of a) the considerations set
forth in Appendix IX-A, or the presence of other relevant factors which
may make the guidelines inapplicable or subject to modification, and b)
injustice would result from application of the guidelines. In all cases,
the determination of good cause shall be within the sound discretion of
the court.

Paragraph three of Appendix IX-A of the Guidelines authorizes a court to
either disregard or adjust the guideline-based award to meet the needs
of the child or parent’s circumstances if the “guidelines
are inappropriate in a specific case.”

The deviation must be specified if the guidelines are not going to be used.
The court must specifically lists its findings when it deviates from the
guidelines.
Elrom v. Elrom, 439 N.J. Super. 424, 442-443 (App. Div. 2015). If the support guidelines
are not applied in a specific case of the guidelines-based award is adjusted,
the reason for the deviation and the amount of the guidelines-based award
(before any adjustment) must be specified in writing on the guidelines
worksheet or in the support order. If the guidelines are found to be inapplicable
in a particular case, the court should consider the factors set forth
in N.J.S.A. 2A:34-23 or N.J.S.A. 9:17-53 when establishing the child support award.

Appendix IX-A further advises on deviations:

“The fact that a family does not incur a specific expense in a consumption
category is not a basis for a deviation from the child support guidelines…
A parent must show that the family’s marginal spending on children
for all items related to a consumption category differs from the average
family.”

The guidelines do not apply to every family situation. For instance, the
guidelines are only applicable for six (6) children. See
Essex Cty. Div. of Welfare v. Walker, 233 N.J. 464 (App. Div. 1988). If a family has more than six (6) children,
then there must be a deviation from the guidelines to calculate support
for the seventh, eighth and ninth child.
Harte v. Hand, 433 N.J. Super. 457 (App. Div. 2013) and following remand,
Harte v. Hand, 438 N.J. Super. 545 (Ch. Div. 2014).

Deviations are further permitted when a parent files a pendent lite application
and financial information is no provided to the court. See
Terry v. Terry, 270 N.J. Super 105, 121 (App. Div. 1994).

Should there be discrete reasons why there should be a deviation from payment
of child support? Should there be a deviation when the parents live close
to each other and the family benefits from the parents and children seeing
each other several times a week. Should a designated number of overnights
trigger a deviation? After all, the money is for the benefit of the child,
not a reward or punishment for either parent.

If the above statements are true that child support is a right that belongs
to the children and cannot be waived by a custodial parent, how can anyone
deviate from paying it? Would it not logically follow that deviations
from paying of child support are not and should not be permitted? If child
support is to support a child, and the family was going to buy four (4)
ponies when the parents lived together as a family, why shouldn’t
the child still get the fourth pony if that was the intention all along?

Consider the purpose of child support and then the needs of the children
when making applications for child support. Make your arguments concise
and specific when requesting deviations, keeping in mind that the support
belongs to the child. Just because the statute says you can, does that
make it the right decision? Is the statute wrong? Some would say yes.

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